United States District Court, N.D. New York
DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge.
case, Plaintiffs Anthony and Jaclyn Stone challenge, among
other things, discriminatory treatment they allegedly
experienced while Anthony was incarcerated at Cape Vincent
Correctional Facility ("Cape Vincent C.F."). Dkt.
No. 66 ("Second Amended Complaint"). Plaintiffs allege
violations of the First and Fourteenth Amendments, Title VI
of the Civil Rights Act of 1964, 42 U.S.C. § 2000d
et seq., and the New York State Constitution.
Id. ¶¶ 61-85. On March 31, 2016, the Court
granted in part and denied in part Defendants' motion to
dismiss Plaintiffs amended complaint. Dkt. No. 41
("March Order") at 28-29; see also Dkt.
No. 4 ("Amended Complaint"); Dkt. No. 32
("Motion to Dismiss"). After Plaintiffs filed their
Second Amended Complaint, several defendants moved for
partial summary judgment on Plaintiffs' First Amendment
retaliation and Title VI claims. Dkt. No. 68 ("Motion
for Partial Summary Judgment"); see also Dkt.
No. 68-32 ("Memorandum"). Plaintiffs responded by
arguing that summary judgment was premature because they had
not been able to conduct discovery, and alternatively that
Defendants' Motion fails on the merits. Dkt. No. 75-4
("Response") at 1-10. The Court then directed
Plaintiffs to file an affidavit under Federal Rule of Civil
Procedure 56(d), Dkt. No. 91 ("May Order"), which
they did on May 25, 2017, Dkt. No. 94 ("56(d)
Affidavit"). Because granting partial summary judgment
would be premature, the Court denies Defendants' Motion
for Partial Summary Judgment with leave to renew.
Rule 56(d) of the Federal Rules of Civil Procedure, if a
party facing a motion for summary judgment demonstrates
"by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its
opposition, the court may: (1) defer considering the motion
or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other
appropriate order." A Rule 56(d) affidavit must
"describ[e]: (1) what facts are sought and how they are
to be obtained; (2) how these facts are reasonably expected
to raise a genuine issue of material fact; (3) what efforts
the affiant has made to obtain them; and (4) why the
affiant's efforts were unsuccessful." Gualandi
v. Adams, 385 F.3d 236, 244 (2d Cir. 2004). Rule 56(d)
"is a safeguard against premature grants of summary
judgment and should be applied with a spirit of
liberality." Holmes v. Lorch, 329 F.Supp.2d
516, 529 (S.D.N.Y. 2004) (quoting Dubia Islamic Bank v.
Citibank, 126 F.Supp.2d 659, 665 (S.D.N.Y. 2000)).
Nevertheless, "[c]ourts are particularly reluctant to
allow additional discovery in the face of a summary judgment
motion where the requests are 'put forth by parties who
were dilatory in pursuing discovery.'" Alali v.
DeBara, No. 07-CV-2916, 2008 WL 4700431, at *7 (S.D.N.Y.
Oct. 24, 2008) (quoting Paddington Partners v.
Bouchard, 34 F.3d 1132, 1139 (2d Cir. 1994)).
moving defendants seek summary judgment on Plaintiffs'
retaliation and Title VI claims. These defendants argue that
Plaintiffs' retaliation claim fails because there is no
evidence that the defendants who allegedly retaliated against
Anthony Stone-defendants Jones, Martin, Pratt, Knapp,
McAuliffe, and Graves-knew about, or were otherwise involved
in, Plaintiffs' complaints about other
defendants. Mem. at 8. In this circuit, "it is difficult to
establish one defendant's retaliation for complaints
against another defendant." Guillory v. Ellis,
No. 11-CV-600, 2014 WL 4365274, at *18 (N.D.N.Y. Aug. 29,
2014) (collecting cases). Anthony conceded in his response to
Defendants' first set of interrogatories that he had
never encountered or complained about any of the defendants
who allegedly retaliated against him before December 11,
2012, Dkt. No. 68-31 ("Stone Response to
Interrogatories") at 1-4,  when Pratt and Martin searched
his cube and Martin allegedly planted drugs, Resp. at 5. And
Plaintiffs have not pointed to any evidence in the record
that the defendants who allegedly retaliated against Anthony
had any inkling of his or Jaclyn's complaints about other
defendants before the alleged planting of drugs. These
lacunae in the record may stem from Plaintiffs' failure
to conduct meaningful discovery in this case. See
Dkt. No. 95 ("June Status Report") (informing the
Court that Plaintiffs intend to depose almost all of the
individual defendants in July 2017).
Rule 56(d) affidavit proposes to remedy these gaps in the
record by deposing the individual defendants, which
"will reveal[, among other things, ] the extent and
knowledge of the individual Defendants; supervisory oversight
and knowledge; [and] the extent to which complaints are met
with retaliatory conduct and/or wilful ignorance of
discriminatory conduct and practices." 56(d) Aff ¶
10. These depositions could yield evidence raising a genuine
issue of material fact with respect to Plaintiffs'
retaliation claim. If, for example, the depositions reveal
that Martin knew about Plaintiffs' complaints about other
defendants, and that he was close friends with some of those
officers, a reasonable jury might be able to find that he had
reason to retaliate against Plaintiffs by planting drugs in
Anthony's cube. See, e.g., Roland v.
McMonagle, No. 12-CV-6331, 2015 WL 5918179, at *6
(S.D.N.Y. Oct. 9, 2015) ("Roland has presented evidence
that one of the Defendants lived with the officers involved
in his July 2009 grievances. Viewed in the light most
favorable to the Plaintiff, this evidence supports
Roland's claim that Defendants were aware of his history
of complaints."). Thus, granting summary judgment on
Plaintiffs' retaliation claim would be premature.
moving defendants seek summary judgment on Plaintiffs'
Title VI claim on the ground that a reasonable jury could not
find that defendant Department of Corrections and Community
Supervision ("DOCCS") was deliberately indifferent
to the discrimination Plaintiffs allegedly experienced at
Cape Vincent C.F. Mem. at 11-12. Under Title VI,
"[l]iability only arises if a plaintiff establishes: (1)
substantial control [over the harasser and the environment],
(2) severe and discriminatory harassment, (3) actual
knowledge, and (4) deliberate indifference." Zeno v.
Pine Plains Cent. Sch. Dist, 702 F.3d 655, 665 (2d Cir.
2012). "A finding of deliberate indifference depends on
the adequacy of a [defendant's] response to the
harassment." Id. at 666. In their Response,
Plaintiffs assert, without citing any evidence, that "no
real investigation was conducted and therefore no corrective
or remedial action was taken whatsoever." Resp. at 7.
That, according to Plaintiffs, suggests deliberate
indifference to the discrimination and harassment they
suffered at Cape Vincent C.F. Id.
Rule 56(d) affidavit states that they intend to fill these
gaps in the record by
seek[ing] facts demonstrating, inter alia, (1) that
DOC[C]S was purposefully ignorant of the nature of their
complaints, that is, their racial nature; (2) that DOC[C]S
failed to conduct an investigation with respect to their
complaints and that DOC[C]S' "response" to
Plaintiffs' October 28, 2012 complaint was (i) not
undertaken with diligence, (ii) obviously incomplete based
on, for example, the lack of any inquiry to Plaintiff Jaclyn
Stone, (iii) assigned and conducted by the Cape Vincent
correctional facility itself, an obvious conflict of
interest, (iv) and otherwise not calculated to uncover the
racial discrimination and harassment or put an end to it; and
(3) that DOC[C]S did not take any remedial or corrective
action to address the racial discrimination and harassment
complained of by Plaintiffs.
56(d) Aff ¶ 6. Plaintiffs argue that "these facts
[could] show that DOC[C]S was deliberately indifferent to the
racial discrimination and harassment endured by
Plaintiffs." Id. ¶ 7. The Court agrees.
Determining whether a defendant was deliberately indifferent
to unlawful discrimination entails a fact-sensitive inquiry,
and evidence about DOCCS' response to Plaintiffs'
complaints is clearly relevant to that analysis. Thus, it
would be premature to grant summary judgment on
Plaintiffs' Title VI claim.
Court recognizes that Plaintiffs have been less than diligent
in pursuing discovery in this case. On May 4, 2016, the
discovery cutoff date was set for December 16, 2016. Dkt. No.
46 ("Pretrial Scheduling Order") at 1. On November
23, 2016-almost a week after the moving defendants had moved
for partial summary judgment-the cutoff date was extended to
March 3, 2017, Dkt. No. 70, and on February 3, 2017, it was
extended to March 31, 2017, Dkt. No. 79. The deadline is now
July 14, 2017. Dkt. No. 96. As of the date of this Decision
and Order, Plaintiffs apparently have yet to depose any
individual defendants. June Status Report. Plaintiffs do not
adequately explain these delays in their Rule 56(d)
affidavit, which simply notes that Plaintiffs "have
[not] yet been able to depose any of the Defendants."
56(d) Aff ¶ 9. And Plaintiffs appear to be have been
less than forthcoming in responding to Defendants'
discovery demands. Dkt. No. 76-7 ("Reply Statement of
Material Facts") ¶¶ 55, 63.
"Rule 56(d) 'will not be liberally applied to aid
parties who have been lazy or dilatory.'"
Labombard v. Winterbottom, No. 14-CV-71, 2015 WL
6801206, at *5 (N.D.N.Y. Nov. 6, 2015) (quoting Allstate
Ins. Co. v. Administratia Asigurarilor De Stat, 948
F.Supp. 285, 294 (S.D.N.Y. 1996)). But in evaluating Rule
56(d) affidavits, courts routinely give less weight to the
third and fourth factors, which involve the non-moving
party's efforts to obtain evidence that could create a
genuine dispute of material fact. E.g., Am. Home
Assurance Co. v. Zim Jamaica, 418 F.Supp.2d 537, 548
(S.D.N.Y. 2006). And, as detailed above, "[t]his is not
a case where a party is opposing summary judgment based
solely on the mere hope that further evidence may develop
prior to trial that could possibly support its claim."
Crown Castle USA Inc. v. Fred A. Nudd Corp., No.
05-CV-6163, 2007 WL 700901, at *4 (W.D.N.Y. Mar. 1, 2007).
Moreover, discovery is now well underway: Anthony and Jaclyn
Stone were deposed in May, 56(d) Aff. ¶ 11, and almost
all of the individual defendants are scheduled to be deposed
in July, June Status Report. Thus, because Plaintiffs appear
poised to gather evidence that could raise genuine issues of
material fact with respect to the two claims on which the
moving defendants seek summary judgment, the Court denies
these defendants' Motion for Partial Summary Judgment
with leave to renew. Defendants may move for summary judgment
again in accordance with the deadline for filing substantive
motions, which U.S. Magistrate Judge Andrew T. Baxter
recently extended to September 15, 2017. Dkt. No. 96.
it is hereby:
that the moving defendants' Motion for Partial Summary
Judgment (Dkt. No. 68) is DENIED with leave to renew; and it
that the Clerk of the Court serve a copy of this Decision and
Order on all ...